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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Tagro v Royal Mail Group Limited [2011] NIIT 02183_10IT (07 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/02183_10IT.html
Cite as: [2011] NIIT 02183_10IT, [2011] NIIT 2183_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 2183/10
CLAIMANT: Serge Tagro
RESPONDENT: Royal Mail Group Limited
DECISION
The unanimous decision of the tribunal is that the claimant’s claims for disability discrimination, race discrimination and unfair dismissal are dismissed.
Constitution of Tribunal:
Chairman: Mr B Greene
Members: Ms E Kennedy
Mr S Adair
Appearances:
The claimant appeared in person.
The respondent was represented by Mr Peter Hopkins, of counsel, instructed by Napier & Sons Solicitors.
Sources of Evidence
1. The tribunal heard evidence from the claimant and his witness William Shilliday and, on behalf of the respondent, from Conor Crookes, Trevor Martin, Gerard Brady, Eamar O’Hagan and Jim McCreight. The tribunal also received eight bundles of documents amounting to 713 pages and submissions of 15 pages.
The Claim and the Defence
2. The claimant claimed discrimination on the grounds of disability and race and unfair dismissal. The respondent denied the claimant’s claims in their entirety.
The Issues
3. Legal Issues
Disability Discrimination
(1) Is/was the claimant a “disabled person” as defined in the Disability Discrimination Act 1995, as amended (“the DDA”)?
(2) If so, had the respondent actual or constructive knowledge of the claimant’s disability?
(3) If yes, was the claimant subjected to less favourable treatment than a person not having the claimant’s disability on the grounds of the claimant’s disability in being dismissed (“direct discrimination”).
(4) Did the respondent discriminate against the claimant by failing to make reasonable adjustments on account of the claimant’s disability as to:-
(i) the dismissal procedure;
(ii) dismissing him for reason of unsatisfactory attendance;
(iii) taking into account absences which allegedly relate to a disability?
(5) Was the claimant subjected to less favourable treatment for a reason which is related to the claimant’s disability in being dismissed for unsatisfactory attendance (“disability-related discrimination”)?
(6) If yes, can the respondent show such treatment was justified as being for a material and substantial reason?
Race Discrimination
(7) Was the claimant subjected to less favourable treatment than other persons on racial grounds, contrary to Articles 3 and 6 of the Race Relations (Northern Ireland) Order 1997 (“the RRO”)?
(8) Was the claimant subjected to harassment on grounds of race, contrary to Articles 4 and 6 of the RRO?
(9) Was the claimant victimised by the respondent by reason of having complained of contravention of the RRO, contrary to Articles 4 and 6 of the RRO?
Unfair Dismissal
(10) Was the claimant unfairly dismissed by the respondent as to any:-
(i) failure to follow the statutory dismissal procedure?
(ii) failure to communicate the outcome of the appeal?
(iii) failure to properly investigate the reasons for the claimant’s absences?
(iv) reliance on such periods of absence in the claimant’s dismissal?
(v) breach of any duty of trust and confidence; and
(vi) breach of any duty of good faith?
Factual Issues
4. (1) Did the claimant suffer from a disability at the relevant time for the purposes of the DDA?
(2) If yes to (1), was the respondent aware of this disability at the time of any alleged discrimination?
(3) For what periods was the claimant absent and what were the reasons for those absences?
(4) What reasons were notified to the respondent?
(5) Was the claimant subjected to less favourable treatment by the respondent in the relevant period as compared to employees without the claimant’s disability and/or of a different race?
(6) Was the claimant subjected to bullying and harassment by the respondent’s employees and, if so, was this racially motivated?
(7) What treatment was afforded to the claimant by Mr Conor Crookes?
(8) Who is the claimant’s comparator under the DDA and RRO?
(9) What transpired at the disciplinary meeting on 12 May 2010?
(10) What transpired at the appeal hearing on 22 June 2010?
(11) Was a decision in respect of the appeal communicated to the claimant and, if so, how and when?
(12) Did the claimant raise grievances by way of letter dated 8 July 2010? If so, what progress has been made in respect of those grievances?
(13) Did an aspect of the respondent’s physical premises or a provision, criteria or practice put the claimant at a substantial disadvantage compared to non-disabled employees?
(14) If so what adjustments, if any, did the respondent make and what adjustments, if any, does the claimant allege the respondent should have made?
(15) To what extent would any such alleged adjustments have prevented disadvantage to the claimant, and to what extent were such adjustments reasonable in all the circumstances?
(16) Did the claimant carry out a protected act under the RRO and, if so, when?
(17) If so, was the claimant subjected to less favourable treatment by reason of such a protected act?
(18) What is the relevance of the investigation into the allegation of mis-delivery of mail by the claimant?
(19) Did the method of sending correspondence to the claimant in respect of the investigation change and, if so, why and when?
Findings of Fact
5. (1) The claimant is from the Ivory Coast, Africa and his first language is French.
(2) He worked for the respondent from 7 April 2007 until 10 June 2010 as a postman based in the Dungannon Office.
(3) The respondent has an Attendance Procedure which is agreed with the claimant’s union, the Communication Workers Union. The procedure sets out minimum standards of attendance for all the respondent’s employees. It provides for a series of warnings to give employees an opportunity to improve their attendance. Warnings at different stages under the Attendance Procedure may be triggered where the employee incurs in excess of the following periods of absence:-
(i) Stage 1 – 4 absences or 14 days in a 12 month period;
(ii) Stage 2 – 2 absences or 10 days in any 6 month period in the next 12 months;
(iii) Stage 3 – 2 absences or 10 days in any 6 month period during the next 12 months.
Where an employee arrives at a Stage 3 hearing dismissal is one of the options open to the respondent.
The Attendance Procedure is apart from the respondent’s Conduct Code though deliberate abuse of the Attendance Procedure will constitute misconduct and may result in disciplinary action.
Under the Code the manager will:-
“… Make the employee fully aware of any evidence and give sufficient time to respond to it with his/her representative.”
Later on the Code also states:-
“The employee will be made fully aware of any relevant new evidence and given sufficient time to consider it with his/her representative.”
In relation to the appeal the Code states:-
“The appeal hearing is a hearing at which the appropriate appeal manager will rehear the case in its entirety … .
The employee will normally be told the outcome of the appeal face to face within five working days. If it is not possible the individual will be informed of the reason and the expected delay.”
(4) At a recruitment interview for the post the claimant informed the respondent that he suffered from a skin complaint.
(5) The claimant received counselling from the respondent because he had mis-delivered mail. The counselling occurred on 29 December 2007.
(6) On 24 March 2008 the respondent triggered Stage 1 of its Attendance Procedure because the claimant had been off for 4 absences of 4 days.
(7) The respondent uses the services of an occupational health provider called Atos. It provides medical advice to the respondent as to the fitness or otherwise of employees to be in work or continue work. Whilst the interviews can be on a face to face basis they are usually conducted by telephone. All the interviews by Atos with the claimant throughout his employment with the respondent were carried out by telephone without any face to face encounter or physical examination.
On 3 April 2008 Atos carried out a medical assessment of the claimant. Atos concluded he was fit for his full contractual duties and responsibilities. The report added that management could support continuous attendance at work if alternate duties can be provided when the swollen lesions develop on his heels and ankles. He was advised to wear soft shoes and cotton socks whenever possible.
(8) On 7 April 2008 the claimant attended a Stage 1 hearing because he had been absent on 10 August, 22 December 2007 and on 7 January and 23 March 2008.
(9) At the meeting on 7 April 2008 the claimant was offered the choice of having a representative attend with him. At the hearing the claimant did not have the benefit of a representative. However he made no complaint at the meeting about not having a representative. The claimant also indicated to the tribunal that at the Stage 1 hearing he did not have a copy of the respondent’s Attendance Procedure. However it seemed to the tribunal that even if that were the case, which the respondent denies, the claimant had sufficient information to know what was happening and why he was at a Stage 1 hearing and the implications of the same.
(10) The outcome of the Stage 1 hearing was that the respondent gave the claimant a Stage 1 warning on 15 April 2008.
(11) On 5 December 2008 Stage 2 of the Attendance Procedure was triggered by reason of 2 further absences of the claimant from 19-27 September 2008 and for 5 December 2008. He was off work for 7 days.
(12) On 29 December 2008 the respondent invited the claimant to attend a Stage 2 hearing. It invited him to be accompanied.
(13) The hearing took place on 31 December 2008. The result of the hearing was that the claimant was given a Stage 2 warning.
(14) Diane Willis gave a counselling session to the claimant on 4 June 2009 by reason of mis-delivery of mail.
(15) The claimant was injured during the working day using the respondent’s van. During an interview with his manager, Conor Crookes, on 7 October 2009, he denied he was injured on a delivery which his manager interpreted as meaning he had not been injured at work. The claimant signed a record of the interview.
(16) A medical enquiry was carried out by Atos with the claimant on 28 July 2009 by telephone arising from his injury at work on 23 July 2009. Atos recommended that the claimant receive physiotherapy. Atos drew to the attention of the respondent that the financial cap for the provision of physiotherapy had been reached and specific authorisation was needed to follow it up in relation to the claimant. Atos also recommended; that the respondent consider reducing the lifting that the claimant has to do to 8 kilograms; that his driving be reduced; and that his manager have a weekly dialogue with him.
(17) None of these recommendations was actioned. The reason for these omissions is unknown. Some speculation was advanced about changes of managers or a mix up or confusion but no explanation was offered.
(18) On 30 July 2009 the claimant’s doctor referred him for physiotherapy through the national health service.
(19) Atos provided another medical report to the respondent on 18 September 2009 following a request from the respondent. In the report Dr Scott stated that the claimant’s skin rash should settle down within twelve months but might cause occasional problems with work because of pain. His neck injury, he stated, should recover over the following few months.
(20) On 22 September 2009 the respondent, by letter, informed the claimant that Stage 3 of the Attendance Procedure had been triggered on 30 July 2009. The claimant had had 2 absences on 1 to 4 April 2009 and 30 July 2009. These absences amounted to 4 days. The letter informed him that consideration would be given to his dismissal. The letter came from Mr Eamar O’Hagan.
(21) On 23 September 2009 the claimant’s general practitioner wrote to him to state that a diagnosis had been made of his ongoing dermatological condition.
(22) The Stage 3 hearing took place on 25 September 2009. The claimant was accompanied by Mr Shilliday his union representative. Mr O’Hagan decided not to implement the dismissal option but to refer the claimant back to Stage 2 of the Attendance Procedure.
(23) On 5 October 2009 Mr Conor Crookes became the claimant’s manager.
(24) Atos provided another report on the claimant on 6 October 2009. In that report they made two recommendations; to reduce the repetitive lifting done by the claimant; and to review the safety of his driving. Neither recommendation was considered by his manager, Mr Crookes, although he indicated that he had seen the medical report. Again physiotherapy was recommended and the funding issue was again drawn to the respondent’s attention. Mr Crookes requested physiotherapy for the claimant on 7 October 2009.
(25) The respondent carried out a fact-finding interview with the claimant and Conor Crookes about mis-delivery of mail on 20 October 2009.
(26) The claimant wrote to the respondent on 7 November 2009. In that letter he accepted that he had done some mis-delivery of mail and apologised. He sought statistics on other mis-deliveries and raised the issue of race discrimination and the suggestion that management was attempting to get rid of him.
(27) Mr Conor Crookes wrote to the claimant on 26 November 2009 inviting him to a meeting to consider the mis-delivery done by the claimant. The meeting was scheduled for 1 December 2009.
(28) The respondent rescheduled for 4 December 2009 the formal meeting with Conor Crookes regarding the claimant’s alleged mis-delivery.
(29) At the meeting on 4 December 2009 the claimant raised bullying and harassment for the first time. Mr Crookes invited him to make his complaints formal instead of merely mentioning them. The claimant also suggested that others had been guilty of mis-delivery but he did not mention any names. The respondent accepted others had been guilty of mis-delivery of mail but following representations or a reprimand had improved.
(30) Later the same day the claimant wrote a letter of grievance alleging race discrimination against Conor Crookes and Derek Greenaway.
(31) On 21 December 2009 Mr Gerard Brady met with the claimant in relation to his complaint of bullying and harassment. At the meeting the claimant reiterated his complaints against Conor Crookes and Derek Greenaway of race discrimination. He stated he had been treated differently regarding his deliveries. He also said that the workplace had become threatening and uncomfortable and he had not been provided with physiotherapy in relation to his shoulder accident which he had sustained in July and about which the recommendation had been made for physiotherapy by Atos in July 2009.
Mr Brady spoke to the claimant, Mr Crookes and Mr Greenaway. He did not speak to anyone else or attempt to obtain any objective evidence as to how Mr Crookes or Mr Greenaway had treated the claimant or if any other members of staff had observed a threatening or uncomfortable atmosphere or had witnessed any of the other matters about which the claimant complained. Mr Brady did not ascertain how many other mis-deliveries there were in the Dungannon office in an effort to discover whether the claimant’s treatment for his mis-deliveries differed from that which had been afforded to others. Nor was any explanation sought as to why physiotherapy, recommended in July 2009 and followed up on 7 October 2009 by Conor Crookes had still not been provided by the time of the grievance meeting on 21 December 2009.
Mr Brady concluded that the claimant’s claims were not upheld.
(32) Mr Conor Crookes administered a reprimand to the claimant for mis-delivery on 21 December 2009.
(33) On 7 January 2010 the claimant appealed against his reprimand for mis-delivery of mail.
The respondent’s disciplinary conduct code provides for an appeal against a reprimand. The appeal is by way of a re-hearing of the case in its entirety. The appeal procedure also allows for further investigation to be carried out by the person conducting the appeal. In those circumstances the code requires the holder of the appeal to make the employee fully aware of any relevant new information or new evidence and to give him sufficient time to consider it with his representative.
Mr Martin, who conducted the appeal, did not rehear the case in its entirety. Rather he sought any new points that the claimant wished to make. Nor did Mr Martin inform the claimant that he had spoken to Mr Crookes nor did he reveal the nature or outcome of that discussion.
(34) Mr Brady wrote to the claimant on 25 January 2010 to inform him that his complaint of bullying and harassment had not been upheld.
(35) On 26 January 2010 Mr Martin sent the notes of the appeal hearing to the claimant seeking his agreement to the notes.
(36) The claimant’s general practitioner referred him to physiotherapy on 4 February 2010. The claimant received five sessions of physiotherapy from that date.
(37) On 9 February 2010 the claimant was notified of the outcome of his appeal against the reprimand, namely that he had been unsuccessful.
(38) On 7 April 2010 the respondent sought a medical on the claimant from Atos under Stage 3 of the respondent’s Attendance Procedure. A report dated
18 April 2010 was provided. In the report Dr Hynes outlined the claimant’s medical and absence history. Under a heading entitled “Current capacity for work” Dr Hynes stated that the claimant was currently on sick leave with symptoms of stress and depression for which he was undergoing treatment at that time. He said the most likely prognosis was that the claimant’s depression would improve. It was not possible, he further stated, to give a precise timescale for a return to work. In relation to the claimant’s joint problems Dr Hynes stated that based on the available evidence at that time that this was not likely to affect attendance at work in the long term. Dr Hynes also intimated that in relation to the claimant that he would anticipate a return to his normal duties. The doctor indicated that ill-health retirement would not seem appropriate and nor did the claimant’s illness, in his view, fall within the Disability Discrimination Act.
(39) The respondent wrote to the claimant on 6 May 2010 indicating that the Stage 3 Attendance Procedure had been triggered by reason of 3 absences totalling 12 days since his previous warning. Mr O’Hagan indicated to him that dismissal on the grounds of unsatisfactory attendance was being considered. However, he indicated before making such a decision that the claimant was invited to a formal interview on 12 May 2010. The claimant was informed that he had the right to be accompanied.
(40) A Stage 3 hearing was held on 12 May 2010 and conducted by Mr Eamar O’Hagan. The claimant was in attendance and was accompanied by his union representative, Mr Shilliday.
(41) Mr O’Hagan wrote to the claimant on 20 May 2010 indicating that he was dismissing him because of his unsatisfactory attendance. He stated in his letter:-
“… I have concluded your current attendance record is unacceptable and, taking everything into account, is unlikely to improve in the foreseeable future. Moreover there are no mitigating circumstances that would make it unreasonable to dismiss you.”
In his notes of the Stage 3 hearing Mr O’Hagan has recorded, in terms of his views on what he had heard from the claimant:-
“Past performance is a good indicator of future attendance and I do not believe there will be any improvement from Mr Tagro.
As I have not been convinced that Mr Tagro’s attendance will improve in the future I believe that dismissal is a proper outcome in this case.”
(42) The claimant appealed his dismissal on 21 May 2010.
(43) Dr Ronan Brannigan, from the claimant’s general practitioner’s practice, provided a letter to the claimant on 7 June 2010. In that letter he stated:-
“TO WHOM IT MAY CONCERN
This gentleman has a skin condition called erythema nodosum. This causes painful skin lesions to appear on his legs. He also has associated ankle and knee pain which can impact on his walking.”
(44) The claimant’s appeal against dismissal was heard by Mr McCreight on 22 June 2010.
The respondent’s Attendance Procedure permits an appeal against a decision to dismiss. Such an appeal is a re-hearing of the case. The claimant’s appeal was not in the form of a re-hearing. In fact Mr McCreight’s notes of the appeal hearing recorded a comment from him in the following terms:-
“I have read through your notes of interview with Mr O’Hagan, page 44 and I am aware of the content. I have also read through Mr O’Hagan’s conclusion notes, page 45. I am therefore fully aware of what you have already said in mitigation and feel that going over the same ground would be unnecessary and I assure you that I will be taking everything already said into consideration. I would welcome anything else that you may have to say in your defence. This said over to you.”
Mr McCreight indicated to the claimant that he would speak to others involved before making his decision.
(45) Mr McCreight sent two copies of the notes to the claimant on 25 June 2010, for the claimant’s agreement or for any amendments that he believed were necessary.
(46) On 8 July 2010 the claimant wrote to Mr McCreight. He sought some changes to the notes of the appeal meeting. He then set out under the title of, “Grievances I wish to raise”, a number of matters, including allegations of discrimination on the basis of disability and race, and failure to follow the statutory grievance procedure.
(47) Mr McCreight replied to the claimant by letter of 23 July 2010 in which he stated he would take account of the grievances raised by the claimant in a full investigation of his appeal.
(48) Mr McCreight wrote again to the claimant on 13 August 2010. In that letter he stated that he had hoped to have his decision issued by the end of the week, i.e. 13 August 2010, but due to further enquiries that he had to make in relation to the claimant’s additional grievances it had not been possible to do that as he was awaiting additional information. He went on to indicate that he would be on annual leave and would not be able to finish the case until the week commencing 23 August 2010.
(49) From 6 September 2010 the claimant had established a premier dance studio and fitness centre on a part-time basis.
(50) The claimant wrote to Mr McCreight on 10 September 2010 saying that he believed the delay in replying to the grievances, raised by his letter of 8 July 2010, was unreasonable as was the delay in the outcome of his appeal hearing of 22 June 2010. He added that he believed, as he had done a protected act under the anti-discrimination legislation, that he may have been treated less favourably by the respondent for having done the protected act. He stated that he believed himself to have been a victim of further and continuing victimisation due to race and/or disability discrimination.
The claimant believed the delay was deliberate and was an attempt to thwart his bringing of proceedings within the statutory time limits.
(51) On 17 September 2010 Mr McCreight wrote to the claimant in relation to his letter of 10 September 2010. In the letter he outlined the history of the appeal since it was heard on 22 June 2010; that he was investigating the grievances raised by the claimant; that he had sought the claimant’s consent to obtain a further medical report from Atos; and that an assessment with Atos had been arranged for 17 September. Mr McCreight added that he could not conclude the appeal nor deal with the claimant’s grievances until he had seen the outcome of the Atos assessment.
(52) Atos carried out an assessment with the claimant by telephone on 17 September 2010. This assessment had been sought by the respondent on 27 August 2010.
In the medical report Dr Hynes commented that the information available to him suggested that the claimant would be fit to carry out his normal duties on post deliveries at present although he was aware that the claimant had been dismissed. He further commented the most likely prognosis was that symptoms linked to the skin condition would settle down with treatment. Dr Hynes went on to comment:-
“I have reviewed the further medical evidence from Serge’s GP. Based on my assessment, previous assessments and the GP letters, in my opinion Serge suffers from an underlying skin condition with some general effects that have not had significant effects on activities of daily living. On that basis my view remains that his condition is unlikely to be covered by the Disability Discrimination Act. I would, however, describe his condition, and the associated joint problems, as an underlying medical condition causing sickness absence as outlined above and my previous report. I can only give an opinion on whether the DDA is likely to apply. A definitive decision can only be made by a court or tribunal.”
(53) On 28 September 2010 Mr McCreight delivered the outcome of the claimant’s appeal. Mr McCreight indicated in his decision that following his discussions with the claimant and with others involved in the case, he had not found anything new in his discussions that would justify him in overturning the decision to dismiss the claimant.
In his appeal decision Mr McCreight recorded:-
“The best indicator of future attendance at work is past attendance record. I have no confidence that Mr Tagro would be able to achieve regular and effective attendance to the standards Royal Mail expects of all its employees. I am therefore unable to find anything in mitigation of his failure to meet these standards to justify retaining him as a Royal Mail employee. Primarily it is my decision to not uphold the appeal of Mr Tagro on the basis that his attendance record has been unacceptable and on the balance of probabilities further sick absences will be taken.”
He added:-
“… Royal Mail, in view of its responsibilities and work in delivering mail on a daily basis to customers, must be able to depend on the reliability of it’s workforce in terms of attendance. …
It is my belief that in a Network Organisation like ours, each individual acts as a link in the chain and an unreliable absence level is perhaps more of a problem than it would be in some other industries. I believe therefore that in all the circumstances described it is reasonable to conclude that as an employer Royal Mail may now reasonably arrive at a decision that “enough is enough” and that dismissal is an entirely reasonable response at this stage.”
(54) The respondent made it clear throughout all stages of the Attendance Procedure that it accepted the genuineness of the claimant’s medical absences.
The Law
6. (1) A person discriminates against a disabled person if, for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified (Section 3A(1) Disability Discrimination Act 1995 as amended).
(2) A person has a disability for the purposes of the Disability Discrimination Act if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities (Section 1(1) Disability Discrimination Act 1995 as amended).
(3) The effect of an impairment is a long term effect if it has lasted at least 12 months or the period for which it lasts is likely to be at least 12 months or it is likely to last for the rest of the life of the person affected (Schedule 1, 2(1) Disability Discrimination Act 1995 as amended).
(4) An impairment is to be taken to affect the ability of the person concerned to carry out normal day to day activities only if it affects one of the following:-
(a) mobility;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger.
(5) The requirement that an adverse effect be substantial reflects the general understanding of “disability” as a limitation going beyond the normal differences in ability which may exist among people. A “substantial” effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A “substantial” effect is one which is more than “minor” or “trivial”. (Harvey on Industrial Relations and Employment Law Volume L [paragraph 156])
(6) It is unlawful to discriminate against another on racial grounds (Article 6 of the Race Relations (Northern Ireland) Order 1997).
(7) Discrimination on the grounds of race is to treat someone less favourably than another on racial grounds (Article 3(1)(a) of the Race Relations (Northern Ireland) Order 1997).
(8) It is for the claimant who complains of discrimination on racial grounds to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of Article 32 or 33 of the Race Relations (Northern Ireland) Order 1997 is to be treated as having committed such an act of discrimination against the claimant (Article 52A of the Race Relations (Northern Ireland) Order 1997).
(9) The Northern Ireland Court of Appeal in McDonagh & Others –v- Samuel John Hamilton Tom t/a the Royal Hotel Dungannon [2007] NICA 3 stated that, when considering claims of discrimination, tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that set out in the annex to the decision of the English Court of Appeal in Igen –v- Wong [2005] 3 All ER 812. In the McDonagh case the Northern Ireland Court of Appeal recommended tribunals adhere closely to the guidance in Igen.
(10) The guidance set out in the annex to the Igen case is:-
“(i) Pursuant to Section S 63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of Section 41 or Section 42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as ‘such facts’.
(ii) If the claimant does not prove such facts he or she will fail.
(iii) It is important to bear in mind when deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that ‘he or she would not have fitted in’.
(iv) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.
(v) It is important to note the word “could” in S63A(2). At this stage the tribunal does not have to reach a definitive conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary facts could be drawn from them.
(vi) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.
(vii) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with S74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within S74(2) of the SDA.
(viii) Likewise the tribunal must decide whether any provision of any Code of Practice is relevant and if so, taken it into account in determining, such facts pursuant to S56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.
(ix) Where the complainant has proved facts from which conclusions could be drawn that the respondent has treated the complainant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(x) It is then for the respondent to prove that he did not commit, or as the case may be is not to be treated as having committed, that act.
(xi) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.
(xii) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it has adequately discharged the burden of proof on the balance of probabilities and sex was not a ground for the treatment in question.
(xiii) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge the burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the question of procedure and/or Code of Practice.”
(11) In the McDonagh case Kerr LCJ, as he then was, stated that the first question to be addressed is, has the claimant proved, on the balance of probabilities, facts from which a tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination. He went on to say:-
“In addressing this question, it would be necessary for the judge to bear a number of ancillary matters in mind. First, that it is unusual to find evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts. Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists.”
(12) The application of the burden of proof was also considered in Madarassy –v- Nomura International Plc [2007] EWCA CIV33. In that case Mummery LJ, who gave the decision of the English Court of Appeal stated at paragraph 52:-
“She [Madarassy] only has to prove facts from which the tribunal “could” conclude that there has been unlawful discrimination by Nomura, in other words she has to set up a “prima facia” case.”
At paragraph 56 he stated:-
“The Court in Igen –v- Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent has committed an unlawful act of discrimination.”
(13) In the Northern Ireland Court of Appeal decision in Kevin Curley –v- The Chief Constable of the Police Service of Northern Ireland and Superintendant Middlemass [2009] NICA8 Coghlin LJ commented further on shifting the burden of proof in discrimination cases and stated as follows:-
“However, this court would wish to emphasise the need for tribunals engaged in determining this type of case to keep firmly in mind the fact that the claim was founded upon an allegation of religious discrimination. The need to retain such a focus is particularly important when considering the potential application of the provisions of Article 38 of the 1998 Order.”
(14) The Northern Ireland Court of Appeal in Nelson –v- Newry and Mourne District Council [2009] NICA24 cited with approval the comments of Elias J in Laing –v- Manchester City [2006] IRLR748 when he stated:-
“74 The focus of the tribunal analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose conscious or unconscious racial discrimination that is the end of the matter. It is not improper for a tribunal to say in effect “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it is nothing to do with race.”
(15) In RUC Chief Constable –v- A [2000] NI261 at page 273, Carswell LCJ, as he then was, stated, -
“[3] Discrepancies in evidence, weakness in procedures, poor record keeping, failure to follow established administrative processes or unsatisfactory explanations from an employer and may all constitute material from which an inference of religious discrimination may legitimately be drawn. But tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination especially where other evidence shows that such a conclusion is improbable on the facts.”
(16) A person A subjects another person B to harassment, where, on the grounds of race or ethnic or national origin A engages in unwanted conduct which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Conduct shall be regarded as having the effects specified only if, having regard to all the circumstances, including in particular, the perception of B, it should reasonably be considered as having that effect (Article 4A The Race Relations (Northern Ireland) Order 1997).
(17) A person A discriminates against another person B if he treats B less favourably than he treats or would treat other persons in the same circumstances and he does so for one of the following reasons:-
(i) that B has brought proceedings against A or any other person under the Race Relations Order; or
(ii) given evidence or information in connection with such proceedings brought by another person; or
(iii) otherwise done anything under the Race Relations Order in relation to A or any other person; or
(iv) alleged that A or any other person has whether or not the allegation so states, contravened the Race Relations Order or that A knows that B intends to do any of those things or suspects that B has done, or intends to do, any of these things (Article 4 of the Race Relations (Northern Ireland) Order 1997).
(18) To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair. If an employer is satisfied of both of the above requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee and this shall be determined in accordance with equity and the substantial merits of the case. (Article 130 of the Employment Rights (Northern Ireland) Order 1996).
(19) Dismissal for a breach of the respondent’s Attendance Procedure is a dismissal for some other substantial reason. Where the employer wrongly characterises the statutory reasons as one of conduct he is not prevented from relying on the correct statutory reason where the essential issues are known to both parties (Wilson v Post Office [2000] IRLR 834 and at paragraphs 28 and 29).
(20) An employee who is dismissed shall be regarded as unfairly dismissed if the statutory dismissal procedure has not been completed and the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(21) Failure by an employer to follow the statutory dismissal procedure of an employer in relation to an employee who was dismissed shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure (Article 130A of the Employment Rights (Northern Ireland) Order 1996).
(22) What matters is not whether the internal appeal was technically a rehearing or a review but whether the disciplinary process as a whole was fair. The task of the tribunal is to apply the statutory test and, in doing so, they should consider the fairness of the whole of the disciplinary process. If they find that an earlier stage of the process was defective and unfair in some way, they will want to examine any subsequent proceeding with particular care. But their purpose in so doing will not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open mindedness (or not) of the decision-maker, the overall process was fair, not withstanding any deficiencies at the early stage (Taylor v OCS Group Limited [2006 IRLR 613 at 614]).
Application of the Law and the Findings of Fact to the Issues
Disability Discrimination
7. (1) The tribunal is not satisfied that the claimant is a disabled person for the purposes of the Disability Discrimination Act 1995. In so concluding the tribunal had regard to the following matters:-
(i) The claimant suffers from erythema nodosum. This causes painful skin lesions to appear on his legs. He also has associated ankle and knee pain which can impact on his walking.
(ii) Erythema nodosum is clearly a physical impairment.
(iii) His physical impairment is long term in that it has lasted at least 12 months and will continue to affect the claimant.
(iv) The physical impairment, on the basis of the evidence before the tribunal, did not have a substantial effect on the claimant’s ability to carry out his normal day to day activities.
(v) The only evidence before the tribunal related to its impact on his working life. There was not any evidence of it affecting substantially his activities outside of work. The effect on his work related to his mobility and ability to lift up objects. The effects were not substantial.
(2) As the claimant’s medical condition does not have a substantial adverse effect on his ability to carry out normal day to day activities it does not constitute a disability for the purposes of the Disability Discrimination Act. He cannot succeed in a claim for disability discrimination. Accordingly that aspect of the claimant’s claim is dismissed.
Unfair Dismissal
8. (1) The reason for the claimant’s dismissal was that he had breached the respondent’s Attendance Procedure.
(2) A breach of the Attendance Procedure falls under the statutory ground of some other substantial reason of a kind such as to justify dismissal. (Article 130(1)(b) Employment Rights (Northern Ireland) Order 1996 and Wilson v Post Office [2000] IRLR 834).
(3) The fact that the respondent wrongly characterised the claimant’s breach as a conduct matter is not fatal in this claim. There is no doubt as to the reason advanced for dismissal. Here it is not an error of law but normalism (Wilson v Post Office at paragraphs 28 and 29).
(4) The respondent’s Attendance Procedure is a progressive one. It is designed to establish and maintain continuity of service to the respondent’s customers by encouraging better attendance from staff and if that is not achieved to dismiss staff.
(5) The tribunal is satisfied that at the Stage 3 hearing and appeal the claimant was aware of the charges against him. He does not dispute he was off in three further occasions for 12 days thereby breaching Stage 3 of the Attendance Procedure. He was represented at the initial hearing and the appeal hearing. He was allowed to state his case: Following the appeal hearing the claimant wrote to Mr McCreight raising a number of grievances and these were considered by Mr McCreight.
(6) The delay in announcing the appeal by Mr McCreight, though not in keeping with the normal timetable, is explicable by Mr McCreight’s investigating grievances raised by the claimant after the appeal hearing, his own holiday leave and awaiting a report from Atos. The tribunal does not consider this sinister and does not accept that it was done to thwart the claimant in bringing a claim to the tribunal.
(7) The decision arrived at by Mr O’Hagan at the Stage 3 hearing and confirmed on appeal by Mr McCreight is a decision that they could come to on the facts before them.
(8) The tribunal is satisfied that the respondent acted reasonably in treating the claimant’s breach of its Attendance Procedure as a sufficient reason for dismissing the claimant.
(9) The tribunal has a concern that at the Stage 3 appeal stage and after the hearing itself Mr McCreight spoke to others but did not report back to the claimant that he had done so and the outcome of these discussions with an opportunity for the claimant to comment on the outcome.
The tribunal is satisfied that nothing new emerged as part of these discussions and accordingly this concern is not such as to render the dismissal unfair.
(10) Accordingly the claimant’s claim for unfair dismissal is dismissed.
Race Discrimination
9. (1) The claimant is African and black. The respondent’s employees are Irish or British and white so there is a difference in status between the claimant and his comparators.
(2) The tribunal concludes that the claimant was treated less favourably than other employees of the respondent.
(3) The claimant identified a number of matters which he alleged demonstrated less favourable treatment:-
(a) That he was reprimanded for mis-delivery of mail and others were not.
However the evidence before us showed that at least one other person was reprimanded for mis-delivery of mail so that the claimant’s blanket assertion is not correct.
If the claimant’s point is a more nuanced point that others were not reprimanded as frequently as he was or the tolerance of mis-delivery was greater before the reprimand was activated or more use was made of informal methods to avoid mis-delivery there was not any evidence before us to support that more nuanced approach. Therefore this does not amount to less favourable treatment.
(b) That despite being injured around about 23 July 2009 and Atos having recommended physiotherapy nothing appears to have been done about it. Again when Mr Crookes followed up on the request for physiotherapy on 7 October 2009 for the claimant it does not appear to have been addressed.
The tribunal was not provided with an explanation for this lamentable delay. However it is clear from July 2009 that the respondent’s budget for the provision of physiotherapy had been exhausted.
The respondent also refers to the change of manager. Mr Crookes had replaced the former manager on 5 October 2009 and the leave of the previous manager before that date as a possible explanations. The respondent’s witnesses also refer to “a mix-up” or “confusion” as explanations.
Mr Shilladay, the claimant’s union representative received physiotherapy within two weeks of it being needed.
This amounts to less favourable treatment in the view of the tribunal.
(c) That Conor Crookes and Derek Greenaway had bullied and harassed him which he believed amounted to race discrimination.
However, there was little or no evidence against Derek Greenaway to enable any conclusion to be reached that he had treated the claimant less favourably.
Conor Crookes is alleged also to have bullied and harassed the claimant and treated him less favourably than others on racial grounds.
Conor Crooks did deal with the claimant firmly and implemented the various procedures to the claimant’s detriment. However there was not any evidence before the tribunal that the would have treated other employees any differently.
In relation to the reprimands for mis-delivery of mail the claimant had mis-delivered mail. Mr Crookes could legitimately deal with the claimant as he had done so. At least one other employee had been reprimanded for mis-delivery of mail. Therefore it cannot be concluded that this action by Mr Crookes amounted to less favourable treatment.
(d) Mr Brady’s investigation of the claimant’s complaint of bullying and harassment was very flawed. The complaint was in part that the workplace had become threatening and comfortable. Conor Crookes and Derek Greenaway were specifically complained about as being guilty of the bullying and harassment of the claimant. Yet as part of the investigation Mr Brady spoke only to the claimant and Messrs Crookes and Greenaway. He made no attempt whatsoever to investigate if the workplace had indeed become a threatening or uncomfortable place by speaking to any other employees in the workplace, or even ascertaining if anyone else had made such a complaint.
The tribunal is satisfied that this amounts to less favourable treatment.
(e) The tribunal is not persuaded that the application of the Attendance Procedure was less favourable treatment. The treatment received by the claimant was in accordance with the procedure. There was no evidence before the tribunal that other employees were not similarly treated under the Attendance Procedure.
(4) The tribunal is not satisfied that the respondent treated the claimant less favourably on racial grounds. In so concluding the tribunal had regard to the following matters:-
(a) Part of the claimant’s complaint of race discrimination was that the respondent was trying to get rid of him. Yet at a Stage 3 hearing under the Attendance Procedure when the respondent could have dismissed him he was given a second chance and sent back to Stage 2 of the procedure. This was so even though he had breached the Stage 3 requirements.
(b) The physiotherapy saga could suggest race as a motive. Yet there are other explanations for the delay which are equally valid, namely the cap on monies for physiotherapy at July 2009, a change of manager, a mix-up or confusion.
Whilst the tribunal finds the absence of an explanation from the respondent for the delay unsatisfactory this area was not explored in any depth in cross-examination. The tribunal is left with race as one of a number of possible reasons for the delay in offering physiotherapy. The race reason has no evidence to support it whereas there is some evidence to support a change of manager and the financial cap on physiotherapy. Therefore the tribunal does not accept race as the reason for the delay in providing physiotherapy as there was not any evidence to support it.
(c) Mr Brady’s flawed investigation of the bullying and harassment allegations of the claimant seem to the tribunal to be equally explicable by an undue deference by Mr Brady of fellow managers and a reluctance to challenge their accounts of events. The tribunal therefore does not accept race as a reason for the approach he followed.
(d) Following the approach directed by the Court of Appeal in Curley v The Chief Constable of the PSNI and Superintendent Middleman and Nelson v Newry and Mourne District Council the tribunal directs its focus on whether there is evidence of race discrimination conscious or unconscious. The tribunal is not persuaded, on the evidence before it, that race discrimination is a ground for the claimant’s treatment. A number of the claimants complaints are reasonably explicable by factors other than race.
(5) The claimant has failed to establish a prima facie case of race discrimination. The burden therefore does not shift to the respondent.
(6) Accordingly his claim for race discrimination is dismissed.
Chairman:
Date and place of hearing: 3, 4, 5, 6, 10, 11, 12, 13 and 19 May and 26 September 2011
Date decision recorded in register and issued to parties: